This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.-(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

85.-(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Court File No.: C-11-247 (St. Catharines) Date: 2014-12-15 Superior Court of Justice – Ontario

Between: Children’s Aid Society of Niagara Region, Applicant

• and - C.T. and Z.R., Respondents

Counsel: Paul Heinen, for the Applicant C.T., Respondent in Person Z.R., Not Appearing John J. Simon, Appearing as Counsel for N.L.K.T. born [...], 2012

Heard: November 10th, 2014 (St. Catharines)

Reasons for Judgment

Lofchik, J.

[1] These are Reasons further to my endorsement on the record of this matter on November 10, 2014.

[2] C.T. is the biological mother of the child N.L.K.T., born [...], 2012.

[3] C.T. has named Z.R. as the biological father of N.L.K.T. C.T. and Z.R. reside separate and apart. Z.R. was noted in default in this proceeding on April 14, 2014.

[4] C.T. and Z.R. are also the parents of N.L.T., born [...], 2009. This child is not the subject of this application. N.L.T. is in the kinship care of her paternal great aunt and uncle, J.B. and W.M., pursuant to a twelve month supervision order obtained on May 22, 2013. The Society is seeking an order that N.L.T. be placed in the custody of J.B. and W.M., pursuant to section 57.1 of the Child and Family Services Act. This matter is currently before the Court.

[5] C.T. is also the parent of K.K.E.T., born [...], 2014. C.T. has not named a biological father to this child. This child is not the subject of this application. The Society is seeking an order that this child be made a ward of the Crown with no access for the purpose of adoption. This proceeding is currently before the court.

[6] The Society commenced a Child Protection Application after N.L.K.T. was apprehended at birth, with a warrant, on [...], 2012 and placed in the temporary care and custody of the Society. N.L.K.T. was ordered to continue in the Society’s care by court order dated October 22, 2013.

[7] N.L.K.T. was found to be in need of protection pursuant to Part III of the Child and Family Services Act and was made a ward of the Society for a period of four (4) months on April 15, 2013.

[8] On November 4, 2013, a final order was made for a consecutive order that N.L.K.T. be made a ward of the Society for a period of two (2) months and then be returned to C.T.’s care on December 16, 2013, subject to the supervision of the Society for a period of ten (10) months. Z.R. was to have access to the Child as arranged by the Society and supervised in its discretion. This is the order under review.

[9] N.L.K.T. was removed from C.T.’s care on February 13, 2014 after the Society had determined that C.T. was not working cooperatively under the terms of Supervision and was not abiding by its conditions. During the removal of N.L.K.T., Society workers observed extensive injuries to the Child.

[10] The Society’s Status Review Application seeks an order that the Child be made a ward of the Crown and be placed in the care of the Children’s Aid Society of the Niagara Region with no access for the purpose of adoption.

[11] The Society has brought this summary judgment motion seeking a determination that there is no genuine issue for trial regarding the Society’s application, and that the Child be made a ward of the Crown without access.

[12] When N.L.K.T. was returned to the care of C.T. on December 16, 2013, the Society’s expectations and the conditions of the supervision order were reviewed with C.T.

[13] On January 9, 2014, C.T. was informed of the services of the Infant and Child Developmental Services Niagara (“ICDS”) and that a worker from ICDS had been following N.L.K.T. while he was in care. The Society strongly recommended that C.T. continue with this service. The Society also informed C.T. that a Child Protection Support Worker would be provided to her to work on parenting strategies.

[14] On January 17, 2014, C.T. contacted Family Service Worker Cortney Mossman (“Ms. Mossman”) to advise that she did not want to be involved with ICDS services. C.T. also stated that the Child was “way whinier than my daughter was” and that she was struggling with this behaviour. C.T. eventually terminated her involvement with ICDS without ever meeting with ICDS staff.

[15] On January 9, 2014, C.T. advised the Society that she did not want to complete counseling through the Family Counseling Centre as she had been referred to a psychologist through her probation officer. C.T. advised that her first appointment was scheduled for February 5, 2014. However, C.T. did not follow through with attending her first scheduled appointment.

[16] On January 9, 2014, C.T. was informed that a Child Protection Support Worker (“CPSW”) would be assigned to assist C.T. on developing parenting strategies for N.L.K.T. and N.L.T. In particular, the CPSW would work with C.T. on attachment strategies, behaviour management and developing routines for N.L.T.

[17] On February 4, 2014, Ms. Mossman attended a home visit and observed N.L.K.T.’s right pinky fingernail to be scabbed with dried blood on it. C.T. attributed this to N.L.K.T. teething and biting his fingernails. C.T. then stated that the Child had been biting the sides of his crib as a result of teething. Ms. Mossman advised C.T. that it was her experience that children who pick scabs and bite their fingernails are often exhibiting signs of distress and discomfort. C.T. responded by stating, “all kids pick.”

[18] On February 12, 2014, Ms. Mossman attended C.T.’s home for a scheduled home visit. N.K.L.T. was observed seated in a high chair. C.T. commented that N.L.K.T. had been seated in the chair for one hour already and he was “staying there until he finished eating.”

[19] At this same home visit, Ms. Mossman noted pieces of cantaloupe which were too big for a child of N.L.K.T.’s age. C.T. had provided these pieces to N.L.K.T. C.T. stated that she wanted the Child to “learn to chew” and also commented that she wanted N.L.K.T. to soon learn to eat with a fork. Ms. Mossman and the CPSW discussed with C.T. that N.L.K.T. was quite young to learn these things just yet. N.L.K.T. was observed to choke on one piece of cantaloupe, though he then passed this piece of food and swallowed it.

[20] C.T. expressed frustration with N.L.K.T.’s development claiming that she wanted him to be “independent” and that “he needs to learn to do things for himself.” C.T. further claimed that N.L.K.T. was “lazy” and “stubborn” when C.T. tried to teach him how to do things on his own.

[21] At this home visit, Ms. Mossman also observed a small oval shaped bruise on N.L.K.T.’s forehead. When questioned, C.T. stated that N.L.K.T. sustained the bruising from “rocking” forwards and hitting his head. C.T. also attributed a small oval bruise on N.L.K.T.’s mid-back to his rocking.

[22] On February 13, 2014, Family Service Workers Ms. Mossman, Amanda Burley and Theresa McAdam attended C.T.’s home with the Niagara Regional Police to remove N.L.K.T. from C.T.’s care. During the removal, Society workers observed that women’s foundation make-up was unevenly spread over N.L.K.T.’s face, inside his nose and on his lips. Bruising could be observed underneath the makeup. C.T. claimed that she had put make-up on N.L.K.T. because she did not want people to look at him when she was out in public as she would feel embarrassed.

[23] Ms. Mossman observed swelling to N.L.K.T.’s left cheek; severe bruising to N.L.K.T.’s forehead; a scratch down N.L.K.T.’s left cheek; his upper lip appeared swollen and had dried blood on it; and his right ankle was severely swollen.

[24] An appointment for N.L.K.T. was scheduled with Dr. Anee Niec of the Child Advocacy and Assessment Program (“CAAP”) at the McMaster Children’s Hospital. Referrals were also made to the Child Advocacy Centre and subsequently the Niagara Regional Police Child Abuse Unit.

[25] N.L.K.T. attended McMaster Children’s Hospital that same day on February 13, 2014 for his CAAP assessment. Dr. Niec described the child as having significant suspicious injuries, which were not typical for a child this age, and he presented as a “battered child.”

[26] At the assessment on February 14, 2014, Dr. Niec reported the following preliminary injuries to N.L.K.T.:

a. Callus on his seventh and eighth rib on the right side;

b. Thoracic Lumbar needs further assessment for abnormality;

c. Inflicted wound on his left elbow;

d. Numerous bruises, all patterned;

e. Top of his head is flat;

f. Possible thumb fracture on his right hand;

g. Torn Frenulum;

h. Right pinky nail white and black, right ring fingernail dead from trauma.

[27] On February 19, 2014, Dr. Niec reported her medical findings to Child Protection Worker Jodi Nicholls and the Niagara Regional Police. These findings included, among other findings, that most of the injuries were acute and recently caused; the torn frenulum is acute as a result of “force feeding”; the burn on left elbow was indicative of a cigarette burn; ear bruising as a result of blunt force trauma to the ear; scabbing on his head which is questionable of hair pulling.

[28] Dr. Niec’s overall assessment was that N.L.K.T. is a “battered” baby. Dr. Niec also reported that there was a noticeable difference in N.L.K.T. from the date he was admitted to the hospital. At the hospital he is “joyful, interactive, singing, smiling and babbling,” while initially he was “whining and upset.”

[29] On February 26, 2014, C.T. was arrested and charged with aggravated assault against the child N.L.K.T., failure to provide the necessities of life and breach of her current probation order. C.T. spent several weeks in custody until June 3, 2014 when she was released on a Recognizance of Bail after pleading guilty to the charge of aggravated assault, pending sentence.

[30] C.T. has not had access with N.L.K.T. since he was removed from her care on February 13, 2014. While C.T. did inquire about access with N.L.K.T. upon her release in June 2014, her Recognizance of Bail precluded her from contact or communication directly or indirectly with N.L.K.T.

[31] C.T. has presented a plan to care for N.L.K.T. on her own.

[32] The Society has concerns regarding this plan including C.T.’s substance abuse issues, her inability to use skills and information regarding age appropriate expectations of N.L.K.T., her criminal charge of aggravated assault against the Child and the physical harm she inflicted upon N.L.K.T.; her resistance to services and her inability to work cooperatively with the Society.

[33] The Society argues that C.T. has not made the progress needed, nor demonstrated she is capable of doing so, within the time frame which the Child has to move to permanency.

[34] The Society’s plan of care dated February 27, 2014 is filed in the Continuing Record, Volume 7, tab 4.

[35] N.L.K.T. has been in the care of the Society nearly his entire life for a total of 681 days as of [...], 2014, and requires permanency. N.L.K.T.’s needs have been met while in care, as described by the Children’s Services Worker Carly Alguire.

[36] Dr. Peterson from McMaster Children’s Hospital has advised that N.L.K.T. will need to be followed for many years to ensure that his spine developed correctly and that he does not experience any complications from his injuries. However, N.L.K.T. appears to be healing well.

[37] Following his readmission into care, N.L.K.T. was referred to Infant and Child Developmental Services to monitor his growth and development and ensure that he meets his developmental milestones.

[38] The Society’s adoption worker has received information regarding N.L.K.T. and is able to plan an adoption placement for N.L.K.T. with both internal and external applicants.

[39] Ongoing contact by C.T. with N.L.K.T. would diminish the pool of available adoption homes.

[40] Z.R. has no relationship currently with N.L.K.T. and cannot establish any meaning or benefit to him. He has not presented a plan to care for N.L.K.T. nor has he exercised access with N.L.K.T.

[41] The law with respect to summary judgment is accurately set out in paragraphs 48 through 57 of the Factum filed on behalf of the Society. In short, the responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue for trial. Mere allegations or blanket denials, or self-serving affidavits not supported by specific fact showing that there is a genuine issue for trial must be insufficient to defeat a claim for summary judgment. Family Law Rules, Rule 16(4.1). Children’s Aid Society of Toronto v. K.T., [2000] O.J. No. 4736 (Ont. C.J.) p. 5. Children’s Aid Society of Toronto v. M.A., [2002] O.J. No. 2371 (Ont. C.J.) p. 6. R.A. v. Jewish Family and Child Services [2001] O.J. No. 47 (Ont. Sup. C.J.) p. 6.

[42] The court may weigh evidence, evaluate the credibility of deponents and draw reasonable inferences when hearing a motion for summary judgment. Children’s Aid of Society of Ottawa v. C.B., 2010 ONSC 6961, [2010] O.J. NO. 5644 at paras. 37-41.

[43] The paramount purpose of the Child and Family Services Act is to promote the best interests, protection and well-being of children. Child and Family Services Act, R.S.O. 1990, c. C11 as amended, s. 1(1).

[44] Where a child is the subject of an order for Society supervision or Society wardship, the Society having care, custody or supervision of the child must apply for a review of the child’s status. Child and Family Services Act, ss. 64(1), 64(2).

[45] Where an application for review of status is made, the court may, in the child’s best interests, vary or terminate the original order or make a further order under section 57. Child and Family Services Act, s. 65(1).

[46] A court may make one of four orders under section 57: a supervision order placing the child with a parent or another person; Society wardship; Crown wardship; consecutive orders of Society wardship and supervision. Child and Family Services Act, s. 57(1).

[47] When making a determination as to the best interests of the child, the court shall consider the non-exhaustive list of criteria at section 37(3) of the Act. Circumstances to be considered include: the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs; the child’s development of a positive relationship with a person and a secure place as a member of a family; the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; the merits of a plan for the child’s care proposed by a Society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent; the child’s wishes and views; the effects on the child of delay in the disposition of the case; the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. Child and Family Services Act, s. 37(3).

[48] A court shall, before making an order under section 57, consider the Society’s written plan for the child. Child and Family Services Act, s. 56.

[49] The court is prohibited from making an order for Society wardship if that order would result in a child less than six years of age being a Society ward for a period exceeding twelve months. Child and Family Services Act, s. 70 (1)(a).

[50] The court may extend the time limits under section 70(4) by a period not exceeding six months if it is in the child’s best interests to do so. Child and Family Services Act, s. 70(4).

[51] The cornerstone of the Act in so far as Crown wardship is concerned, is to provide a child with permanence and stability. Children’s Aid Society of Toronto v. M.A., p. 5 (supra). Children’s Aid Society of Algoma v. L.P., [2002] O.J. No. 2895 (Ont. Sup. C.J.) p. 5. C. v. Children’s Aid Society of Ottawa-Carlton, 9 R.F.L. (5th) 269 (Ont. Sup. C.J.), p. 266.

[52] The court is prohibited from making an access order with respect to a Crown ward, unless the evidence demonstrates that the relationship between the person and the child is beneficial and meaningful and the ordered access will not impair the child’s future opportunities for a permanent or stable placement. Child and Family Services Act, s. 59(2.1). Children’s Aid Society of Toronto v. T.L., 2010 ONSC 1376, [2010] O.J. No. 942 (Ont. S.C.J.) paras. 25-30.

[53] The onus is on the person requesting access to provide evidence with respect to each of these requirements. Children’s Aid Society of Toronto v. M.A., p. 6 (supra). Children’s Aid Society of Algoma v. C.D. [2001] O.J. No. 4739 pp. 16, 17.

[54] The Society is mandated to make all reasonable efforts to secure the adoption of a Crown ward. Child and Family Services Act, s. 63.1.

[55] The onus is not on the Society to establish that the relationship is not meaningful or beneficial or would not impede adoption; that onus remains on the person seeking access. Children’s Aid Society of the Niagara Region v. C. (J.), [2007] O.J. No. 1058.

[56] The parent bears the onus to prove that access to the child when a Crown ward will not diminish, reduce, or jeopardize or interfere with the child’s future opportunities for adoption. Catholic Children’s Aid Society of Hamilton v. L.S., 2011 ONSC 5850, [2011] O.J. No. 4512 (Superior Court of Justice, Family Court) para. 427 as cited in: Children’s Aid Society of the Niagara Region v. D.B. [2012] O.J. No. 4956 (Superior Court of Justice, Family Court) para. 66.

Analysis

[57] As of [...], 2014, N.L.K.T. has been in the care of the Society for a total of 681 days, which exceeds the 12 months permitted as a maximum under section 70(1)(a) of the Child and Family Services Act, as well as the Court’s discretionary power to extend the time in care to 18 months under section 70(4) of the Act. Therefore the only options available at this time are return to a parent or another community member, with or without supervision; or Crown wardship.

[58] C.T. has not had access with N.L.K.T. since he was removed from her care on February 13, 2014.

[59] Regarding the father Z.R., he has not presented a plan, has not maintained a relationship with N.L.K.T. nor with the Society, and has abandoned the child. There is no genuine issue for trial regarding return to the father, or his access, as he has not participated in this proceeding or presented a plan.

[60] Regarding C.T.’s plan to have the child placed in her care, C.T. has had months to demonstrate stability, parenting ability and complete services. N.L.K.T.’s short period of time in C.T.’s care from December 16, 2013 to February 13, 2014 resulted in the Child receiving significant injuries and being assessed as a “battered” baby by Dr. Niec of the Child Advocacy and Assessment Program at McMaster Hospital. C.T. has pled guilty to aggravated assault against N.L.K.T. and is currently subject to a Recognizance of Bail pending sentence.

[61] N.L.K.T. suffered physical and emotional harm which was inflicted by C.T. while he was in her care. N.L.K.T. is in continued need of protection and a return to C.T. would expose N.L.K.T. to significant risk of harm. The risk that existed at the time of N.L.K.T.’s removal on February 13, 2014 still exists today.

[62] N.L.K.T. is very young and requires supervision, a safe environment and a caring adult who can address his day to day needs. C.T. has been unable to address the child protection concerns. There is no genuine issue for trial. C.T. is not ready to have the child placed in her care fulltime, with or without assistance and support.

[63] There is no genuine issue for trial regarding C.T.’s plan. Despite having been given an opportunity to retain counsel, C.T. appeared today unrepresented. The only representations made to the court consisted of a request for an adjournment and a litany of excuses as to why she has been unable to adequately care for the child. I find that it is in the best interests of the child that this matter not be delayed any further.

[64] The Society has identified the process for adoption for N.L.K.T. and does not anticipate a difficulty with placing him for adoption. This plan would address his developmental needs, and provide continuity of care as part of a stable, permanent family unit.

[65] The Society’s plan of care provides the Court with a plan that addresses the child’s best interests without further delay in providing him permanency.

[66] C.T. cannot establish that in the event N.L.K.T. is made a Crown ward, their relationship is meaningful, or beneficial, or that access would not impede the child’s opportunity for permanency through adoption.

[67] I find that the Society has made a prima facie case for summary judgment.

Order to issue that the child N.L.K.T. born [...], 2012 be made a ward of the Crown and placed in the care of the Children’s Aid Society of Niagara Region with no access for the purpose of adoption.

Lofchik, J.

Released: December 15, 2014

Court File No.: C-11-247 (St. Catharines) Date: 2014-12-15 Ontario Superior Court of Justice

Between: Children’s Aid Society of Niagara Region, Applicant

• and – C.T. and Z.R., Respondents

Reasons for Judgment

TRL:co Released: December 15, 2014